Petitioner/Petitioner-Appellant Akau applied for a writ of certiorari from the judgment entered by the Intermediate Court of Appeals (ICA) affirming the District Court’s denial of Akau’s petition pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 40 to vacate, set aside, or correct judgment. Akau’s petition concerns his 1987 misdemeanor conviction for driving while under the influence of an intoxicating liquor (DUI). The District Court’s denial of Akau’s petition followed an evidentiary hearing on his petition.

Approximately 25 years after his DUI conviction, Akau filed his Rule 40 petition in June, 2013, seeking to overturn the conviction. During that intervening span of time, the court reporter’s shorthand notes or transcripts of his arraignment and bench trial were destroyed pursuant to routine records retention policies that apply to the judiciary. Only the District Court calendar for 1987 survives. Based on the calendar entries, his affidavit in support of his petition, and his uncontested testimony at the evidentiary hearing on his Rule 40 petition, Akau argued to the District Court hearing his Rule 40 petition that he had not validly waived his right to counsel in 1987, nor his right to a jury trial, and his right against self-incrimination had been violated because he testified at his bench trial without knowing he had a right not to testify. As a result of these constitutional violations, he argued, his conviction should be overturned. The District Court denied his petition, relying in part on principles from the civil-law doctrine of laches. In its memorandum opinion, the ICA affirmed the District Court’s denial of Akau’s petition on the basis of laches. Although the doctrine of laches has often been applied in analogous post-conviction contexts on the federal level and in the law of other states, the ICA’s opinion marks its first appearance in the context of criminal law in Hawai`i.

Akau raises two issues in his application for writ of certiorari. First, he argues that a 1970 Hawai`i case, Wong v. Among, dictates that where the record is silent, a court may not constitutionally presume a valid waiver of the right to counsel. Akau argues that under stare decisis, the ICA was required to decide Akau’s appeal in his favor on the basis of Wong. Second, Akau argues that the ICA impermissibly imported the equitable doctrine of laches into the criminal context.